In this guide
- How the fight started: the 2004 HIV scare
- Testing vs condoms: two philosophies
- Measure B: Los Angeles votes
- Vivid v. Fielding: the court case
- The 95% exodus
- Proposition 60: going statewide
- Why so many performers voted against “protection”
- Where things stand now
- My take
People outside the industry often ask me the same question, usually with a raised eyebrow: “Why don’t you guys use condoms?” It sounds like a simple question. It is not. Behind it is one of the longest political fights in the history of adult entertainment, a fight that went to the voters twice and to a federal appeals court, and that literally moved the industry out of its home.
This is not a medical article and I am not telling anyone how to protect themselves. If you want the testing side in detail, read how STI testing works in porn. This is the story of the law.
How the fight started: the 2004 HIV scare
In 2004, the US adult industry had a crisis. A male performer tested positive for HIV after returning from shooting abroad, and in the following weeks several women who had worked with him also tested positive. Production in the San Fernando Valley paused while people traced and retested contacts. It was widely covered in the press and it shocked the industry.
At that time, testing was organised mainly through a clinic called the Adult Industry Medical Health Care Foundation (AIM). After that outbreak, public health officials and activists began pushing for something more: mandatory condoms on every set.
The most powerful advocate was the AIDS Healthcare Foundation (AHF), a large Los Angeles-based nonprofit led by Michael Weinstein. For AHF, the logic was simple. Condoms are the standard prevention tool everywhere else, so why should porn be different?
Testing vs condoms: two philosophies
The industry’s answer was testing. Instead of barriers, performers get a full STI panel at regular intervals and producers check that everyone on set is cleared before shooting. Today that system is PASS, run under the Free Speech Coalition, with a 14-day testing window.
Two philosophies collided:
- Public health view (AHF and regulators): Testing finds infections after the fact. Condoms prevent them in the first place. Workplace safety rules apply to everyone who could be exposed to bodily fluids at work, and porn is a workplace.
- Industry view (producers, many performers): Testing has made on-set transmission rare. Condom scenes sell worse. Long shoots with condoms can cause friction, micro-tears and irritation. And the decision should belong to performers, not voters who have never been on a set.
Both sides believed they were protecting performers. That is what made this fight so bitter.
Everyone in this fight said they were protecting performers. Very few of them asked performers first.
Measure B: Los Angeles votes
AHF took the question directly to voters. In November 2012, Los Angeles County held a ballot on Measure B, officially the County of Los Angeles Safer Sex in the Adult Film Industry Act. It required producers of adult films shot in the county to obtain a public health permit, pay a fee, complete training and make sure performers used condoms during certain sex acts.
It passed with about 57% of the vote (Ballotpedia: Measure B). For the first time, a major US jurisdiction had legally required condoms on porn sets.
Vivid v. Fielding: the court case
The industry went to court almost immediately. In January 2013, Vivid Entertainment, another production company and two performers, Kayden Kross and Logan Pierce, sued the county, arguing that the measure violated the First Amendment. Their argument: sex on film is expressive, and forcing a condom into the picture changes the message.
The case reached the Ninth Circuit Court of Appeals. On 15 December 2014, the court ruled in Vivid Entertainment v. Fielding that the lower court was right to refuse to block the condom requirement. The judges found that the condom rule was likely a constitutional regulation, aimed at the secondary effects of the activity (the spread of infections), and that it left producers other ways to express eroticism (Ninth Circuit opinion, PDF).
So the law stood. On paper, Measure B won.
The 95% exodus
In reality, the industry simply left. Producers moved shoots to other counties, to Nevada, to Florida, to Europe, or shot without permits. According to the Los Angeles Times, permit applications for adult films in Los Angeles County fell about 95%, from an estimated 480 in 2012 to 26 in 2015 (LA Times, 2016).
Some of that drop reflected productions that kept shooting quietly without permits, and some reflected the broader collapse of studio budgets because of piracy and free tube sites (I wrote about that in tube sites and piracy). But the message was clear. A law can force a condom onto a set only if the set stays where the law is.
That is the lesson for anyone who wants to regulate a mobile, internet-based industry. A camera crew can move to another county in a day.
Proposition 60: going statewide
If the industry could escape a county law, the answer for AHF was a state law. In November 2016, Californians voted on Proposition 60, the “Condoms in Adult Films” initiative.
Prop 60 would have required condoms in adult films throughout California, made producers pay for performers’ testing and vaccinations, required licensing, and, most controversially, allowed any California resident to sue a producer if the state’s workplace safety agency did not act on a complaint. The state’s nonpartisan Legislative Analyst’s Office set out these provisions and warned about the potential costs and uncertain revenue for the state (LAO analysis).
On election day, Prop 60 was rejected with about 54% voting no and 46% yes (Ballotpedia: Proposition 60). It was opposed by the Free Speech Coalition, many performers and, unusually, by both the California Democratic Party and the California Republican Party.
Why so many performers voted against “protection”
For outsiders, this is the confusing part. Why would the people most at risk campaign against a law that claimed to protect them?
From what performers said publicly during the campaign, the reasons were mostly these:
- Privacy and safety. The private-lawsuit clause meant that a performer who also produced her own content, which many women do today, could be sued by a stranger. Lawsuits are public. Legal names and home addresses could come out. For people who already face stalking and harassment, that was terrifying. I wrote about these dangers in OnlyFans creator privacy and safety.
- Who decides. Many performers felt they were never consulted, and that a nonprofit was making decisions about their bodies and their jobs.
- Economics. If condom scenes sell less, performers book less work. That is their rent.
- Testing works for them. Many felt the testing system, though imperfect, was already keeping them safe.
Not every performer agreed. Some publicly supported condoms, and some studios have always offered condom-only scenes. But a broad coalition of the people actually doing the work said no.
Where things stand now
After Prop 60 failed, no statewide condom requirement was adopted in California. Earlier that year, in February 2016, the Cal/OSHA Standards Board had already rejected a proposed rule that would have required condoms and other barriers on adult sets: the board split 3 to 2, short of the four votes needed to adopt it (CBS News). Measure B remains on the books in Los Angeles County, but much of the production that used to happen there now happens elsewhere or in creator-run home studios.
Meanwhile, the economics shifted. More and more sex on camera is filmed by creators themselves for platforms like OnlyFans. That raises new questions the old laws never imagined: who is the “producer” when two creators film together in their own apartment?
My take
I have spent 14 years on sets, and I understand both sides of this fight more than people would expect. Condoms are a powerful prevention tool, and nobody should be pressured to work without one. If a performer wants condoms, the scene should happen with condoms, full stop. That is a consent issue, and I talk about consent on set in consent on a porn set.
But I also believe performers should be at the centre of decisions about their own work. Measure B and Prop 60 were written mostly by people who were not performers, and the result was a law that moved the industry away instead of making it safer, and a proposal that could have exposed performers to lawsuits and stalkers. The best safety systems are the ones the people doing the work actually trust and use.
For the human stories of the women of this industry, read my columns on House of Maximo. Follow my work at maximogarciaworld.com, and for the 18+ side, fuckingpornstars.net.
Sources
- Ballotpedia. Los Angeles County Condoms in Pornographic Films, Measure B (November 2012).
- US Court of Appeals for the Ninth Circuit. Vivid Entertainment, LLC v. Fielding, No. 13-56445 (15 December 2014).
- Los Angeles Times. L.A. County saw a 95% drop in porn film permits. With the condom law defeated, the industry looks to make its return. November 2016.
- California Legislative Analyst’s Office. Proposition 60: Adult Films. Condoms. Health Requirements. Initiative Statute.
- Ballotpedia. California Proposition 60, Condoms in Pornographic Films (2016).
- CBS News. California board rejects condom requirement for porn films. February 2016.
- Wikipedia. 2016 California Proposition 60.
